<PAGE>
Registration No. 333-73413
As filed with the Securities and Exchange Commission on March 19, 1999
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington D. C. 20549
----------------------
FORM S-8
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
NATIONAL QUALITY CARE, INC.
(Exact name of registrant as specified in its charter)
------------------------------------------------------
Delaware 84-1215959
- -------- ----------------------
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
1835 South La Cienega Boulevard
Suite 235
Los Angeles, California 90035
(310) 280-2758
(Address, including zip code, and telephone number,
including area code, or registrant's principal executive offices)
-----------------------------------------------------------------
1998 STOCK OPTION PLAN
AND STOCK OPTION AGREEMENTS
(Full title of plan)
--------------------
Victor Gura, M.D.
President
National Quality Care, Inc.
1835 South La Cienega Boulevard
Suite 235
Los Angeles, California 90035
(310) 280-2758
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
--------------------------------------------------
Copies to:
Matthias & Berg LLP
1990 South Bundy Drive
Suite 790
Los Angeles, California 90025
Attn: Jeffrey P. Berg, Esq.
Phone (310) 820-0083
Fax (310) 820-8313
<PAGE>
(REGISTRATION STATEMENT COVER PAGE CONTINUED)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
================================== =================== ============================ =============== ================
Title of Each Class of Amount to be Proposed Maximum Proposed Amount of
Securities to be Registered Registered(1) Offering Price per Share(1) Maximum Registration
Aggregate Fee(2)
Offering
Price(1)
- ---------------------------------- ------------------- ---------------------------- --------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share(3) 1,000,000 $0.18 $180,000 $50.04
- ---------------------------------- ------------------- ---------------------------- --------------- ----------------
Common Stock, par value
$0.01 per share(3) 42,000 $0.28 $ 11,760 $ 3.27
- ---------------------------------- ------------------- ---------------------------- --------------- ----------------
TOTAL 1,042,000 $191,760 $53.31 (4)
================================== =================== ============================ =============== ================
</TABLE>
- ----------------------------------
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Pursuant to General Instruction E, the registration fee paid in
connection herewith is based on: (a) the market price of the Company's
Common Stock, on March 2, 1999, with respect to the 1,000,000 shares to
be registered in connection with the Company's 1998 Stock Option Plan
(the "1998 Plan"), and (b) the maximum aggregate price at which shares
of Common Stock underlying certain stock options unrelated to the 1998
Plan and covered by this Registration Statement are proposed to be
offered.
(3) The shares registered pursuant to this Registration Statement are
available for grant as of the date of this Registration Statement and
available for issuance pursuant to the 1998 Plan and certain stock
option agreements which are attached as exhibits to this Registration
Statement.
(4) This amount has previously been paid in connection with this
Registration Statement.
<PAGE>
REOFFER PROSPECTUS
------------------
NATIONAL QUALITY CARE, INC.
1,042,000 SHARES
COMMON STOCK
OFFERED BY SELLING STOCKHOLDERS
This Reoffer Prospectus (the "Prospectus") relates to the reoffer and
resale of up to 1,042,000 shares (the "Shares") of common stock, par value $0.01
(the "Common Stock") of National Quality Care, Inc., a Delaware corporation (the
"Company"), to be offered from time to time for the account of certain
directors, officers, employees and consultants of the Company (the "Selling
Stockholders") pursuant to the Company's 1998 Stock Option Plan (the "1998
Plan"), and certain stock option agreements unrelated to the 1998 Plan, some of
whom may be deemed to be "affiliates" of the Company, as such term is defined in
Rule 405 of the Securities Act of 1933, as amended (the "Securities Act"). See
"Selling Stockholders" and "Plan of Distribution."
The Selling Stockholders directly, through agents designated from time
to time, or through brokers, dealers, or through underwriters to be designated,
may sell the shares of Common Stock offered hereby from time to time on terms to
be determined at the time of sale. To the extent required by applicable law, the
specific shares to be sold, the terms of the offering, including price, the
names of any agent, dealer or underwriter, and any applicable commission,
discount or other compensation with respect to a particular sale will be set
forth in an accompanying Prospectus Supplement. See "Selling Stockholders" and
"Plan of Distribution."
The Company will receive none of the proceeds from the sale of these
Shares. The Selling Stockholders and any broker-dealer, agents or underwriters
that participate with the Selling Stockholders in the distribution of the Common
Stock may be deemed to be underwriters within the meaning of the Securities Act
and any commission received by them and any profit on the resale of the Common
Stock purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. The Company has paid all of the costs of the
Offering with respect to the Shares to be offered by the Selling Stockholders.
See "Selling Stockholders" and "Plan of Distribution."
The Company's Common Stock is currently listed for trading in the
over-the-counter market and is quoted on the National Association of Securities
Dealers, Inc. Bulletin Board or in the "pink sheets" maintained by the National
Quotation Bureau, Inc. under the symbol "NQCI." On March 18, 1999, the closing
market price for the Common Stock as traded in the over-counter-market was
approximately $0.16 per share.
THESE SECURITIES ARE SPECULATIVE
AND INVOLVE A HIGH DEGREE OF RISK.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 19, 1999
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Commission, a Registration Statement on
Form S-8 under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the securities offered hereby. This Prospectus does not contain
all the information set forth in the Registration Statement and the exhibits and
schedules thereto. For further information with respect to the Company and the
Shares, reference is made to the Registration Statement and the exhibits and
schedules filed as a part thereof. Statements made in this Prospectus as to the
contents of any contract or any other document referred to are not necessarily
complete, and, in each instance, reference is made to the copy of such contract
or document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference to such exhibits.
The Registration Statement, including exhibits and schedules thereto, may be
inspected without charge at the public reference facilities maintained by the
Securities and Exchange Commission (the "Commission") at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission at 7 World Trade Center, 13th Floor, New York, New
York 10048 and at 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2411. Copies of the Registration Statement and the exhibits and schedules
thereto may be obtained from the Commission at such offices upon payment of
prescribed rates. In addition, such materials may be accessed electronically at
the Commission's site on the World Wide Web, located at http://www.sec.gov.
The Company is currently subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information may be
inspected and copied at the public reference facilities of the Commission at 450
Fifth Street, N.W., Washington D.C. 20549; at its New York Regional Office, Room
1400, 7 World Trade Center, New York, New York 10048; and at its Chicago
Regional Office, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2411, and copies of such materials can be obtained from the Public
Reference Section at prescribed rates. In addition, such materials may be
accessed electronically at the Commission's site on the World Wide Web, located
at http://www.sec.gov. The Company intends to furnish its stockholders with
annual reports containing audited financial statements and such other periodic
reports as the Company may determine to be appropriate or as may be required by
law.
The following documents, including the exhibits thereto, which are on file
with the Securities and Exchange Commission (the "Commission"), are incorporated
in this Registration Statement by reference:
(a) Annual Report on Form 10-KSB for the year ended December 31, 1997.
(b) Quarterly Reports on Form 10-QSB for the quarterly periods ended March
31, 1998, June 30, 1998 and September 30, 1998.
(c) The description of the Common Stock which is contained in the
registration statements filed under the Exchange, including any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof from the
date of filing of such documents.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents which have been or may be
incorporated by reference in this Prospectus (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
such documents). Requests should be directed to: National Quality Care, Inc.,
1835 South La Cienega Boulevard, Suite 235, Los Angeles, California 90035,
Attention: Ron Berkowitz, Chief Operator Officer. Telephone requests may be
directed to the Company at (310) 280-2758.
2
<PAGE>
Any statements contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus. All information
appearing in this Prospectus is qualified in its entirety by the information and
financial statements (including notes thereto) appearing in the documents
incorporated herein by reference, except to the extent set forth in the
immediately preceding statement.
THE COMPANY
The Company is a provider of integrated dialysis services for patients
suffering from chronic kidney failure, also known as end stage renal disease.
The Company has been in business since 1985 and currently offers dialysis
services through two (2) dialysis centers in Los Angeles, California and
provides home dialysis services.
Further, the Company provides in-patient dialysis services by contract to
five (5) Los Angeles County hospitals. Payment for services is primarily
provided by third party payors, including Medicare, Medi-Cal (a California state
health agency) and commercial insurance companies.
The Company's current business plan includes a strategy to expand as a
provider of dialysis services through the development of new dialysis facilities
and the acquisition of additional dialysis facilities and other strategically
related health care services in selected markets. The Company's acquisition
strategy relates to the Company's intention to purchase existing dialysis
facilities and other related health care services which will create synergies
with the Company's dialysis services business. The Company also intends to
develop and construct additional dialysis facilities.
The market for such acquisition prospects is highly competitive and
management expects that certain potential acquirors will have significantly
greater capital than the Company. In addition, financing for such acquisitions
or development may not be available to the Company on commercially reasonable
terms. In the event the Company cannot obtain the additional financing needed to
fulfill its acquisition and development strategy, the Company may be unable to
achieve its proposed expansion strategy.
The Company's principal executive offices are located at 1835 South La
Cienega Boulevard, Suite 235, Los Angeles, California 90035, tel. no. (310)
280-2758.
3
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the net proceeds from the shares of
Common Stock to be offered by the Selling Stockholders, all of which net
proceeds will be received by the Selling Stockholders. See "Selling
Stockholders" and "Plan of Distribution."
PLAN OF DISTRIBUTION
The shares of the Company's Common Stock offered hereby by the Selling
Stockholders may be sold from time to time to purchasers directly by the Selling
Stockholders. Alternatively, the Selling Stockholders may from time to time
offer the shares of Common Stock through underwriters, dealers or agents, who
may receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders and/or the purchasers of the shares
for whom they may act as agent. The Selling Stockholders and any underwriters,
dealers or agents that participate in the distribution of the shares of Common
Stock may be deemed to be underwriters and any profit on the sale of shares by
them and any discounts, commissions or concessions received by any such
underwriters, dealers or agents may be deemed to be underwriting discounts and
commissions under the Securities Act. At the time a particular offer of shares
is made, to the extent required by applicable law, a Prospectus Supplement will
be distributed which will set forth the specific shares to be sold and the terms
of the offering, including the name or names of any underwriters, dealer-agents,
any discounts, commissions or concessions allowed or reallowed or paid to
dealers.
The shares of Common Stock may be sold from time to time in one or more
transactions at a fixed offering price which may be changed or at varying prices
determined at the time of sale or negotiated prices.
The Company has paid all of the expenses incident to the offering of the
shares of the Common Stock offered by the Selling Stockholders, other than
commissions and discounts of underwriters, dealers or agents.
4
<PAGE>
SELLING STOCKHOLDERS
This Prospectus relates to up to 1,042,000 shares of Common Stock which
have been or may be acquired by the Selling Stockholders from time to time
through the issuance of shares of Common Stock to certain officers, directors,
employees and consultants of the Company as compensation for employment or
consulting services pursuant to the 1998 Plan and certain stock option
agreements unrelated to the 1998 Plan. The following table sets forth certain
information with respect to Selling Stockholders, some of whom may be deemed to
be "affiliates" of the Company, as such term is defined in Rule 405 of the
Securities Act, as of the date of this Prospectus, as follows: (i) the name and
position with the Company within the past three (3) years of each Selling
Stockholder; (ii) the number of shares of Common Stock beneficially owned by
each Selling Stockholder (including shares obtainable under options exercisable
within sixty (60) days of such date); (iii) the number of shares of Common Stock
being offered hereby, and (iv) the number and percentage of the Company's
outstanding shares of Common Stock to be beneficially owned by each Selling
Stockholder before and after completion of the sale of Common Stock being
offered hereby. There can be no assurance that any of the Selling Stockholders
will sell any or all of the shares of Common Stock offered hereby.
<TABLE>
<CAPTION>
NO. OF SHARES NO. OF SHARES
BENEFICIALLY NO. OF SHARES BENEFICIALLY
NAME AND ADDRESS OWNED BEFORE TO BE OFFERED OWNED AFTER PERCENT #
OF BENEFICIAL OWNER OFFERING# FOR RESALE OFFERING* BEFORE OFFERING AFTER OFFERING*
- ------------------- -------------- ------------- -------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Victor Gura, M.D.(1) 2,348,611 342,000 2,006,611 23.12% 19.76%
Ron Berkowitz (2) 272,000 220,000 52,000 2.71% **
Ronald Lang, M.D. (3) 1,487,154 102,500 1,317,154 15.00% 13.28%
</TABLE>
Information with respect to Selling Stockholders from time to time will be
updated in supplements to this Prospectus, which will be filed with the
Commission in accordance with Rule 424(b) under the Securities Act.
As of March 19, 1999, there were issued and outstanding 9,814,878 shares
of Common Stock.
(FOOTNOTES ON FOLLOWING PAGE)
- -----------------------------
5
<PAGE>
(FOOTNOTES FROM PRIOR PAGE)
- ---------------------------
# Pursuant to the rules of the Commission, shares of Common Stock which an
individual or group has a right to acquire within 60 days pursuant to the
exercise of options or warrants are deemed to be outstanding for the
purpose of computing the percentage ownership of such individual or group,
but are not deemed to be outstanding for the purpose of computing the
percentage ownership of any other person shown in the table. Certain of
the Selling Stockholders, as indicated below, are currently not deemed to
be the beneficial owners of a certain number of shares of Common Stock
which are being registered for their benefit in connection with the
Registration Statement. Therefore, the number of shares of Common Stock
indicated in the chart as beneficially owned by such Selling Stockholders
may exceed the number of shares which are currently deemed to be
beneficially owned by certain Selling Stockholders pursuant to the rules
of the Commission.
* Assumes the exercise in full and sale of all the Shares registered for
reoffer and resale pursuant to this Registration Statement.
** Less than 1%
1. The address for Dr. Gura is 5901 West Olympic Boulevard, Suite 300, Los
Angeles, California 90036. Dr. Gura has been granted options under the
1998 Plan to purchase up to 300,000 shares of Common Stock and options
unrelated to the 1998 Plan to purchase up 42,000 shares of Common Stock,
which are the subject of this Registration Statement. The exercise price
for 192,000 options is $0.28 per share and for 150,000 options is $0.20
per share. The options have vested with respect to 192,000 shares, which
expire on September 8, 2003, and 150,000 shares, which expire on January
14, 2004. Dr. Gura is the beneficial owner of shares of an additional
2,006,611 shares of Common Stock (which includes 800,000 shares of Common
Stock owned by an affiliate of Dr. Gura). Further, the Company may issue
an additional 2,842,185 shares of Common Stock and warrants to purchase up
to an additional 337,500 shares of Common Stock, subject to certain future
events.
2. The address for Mr. Berkowitz is 1835 South La Cienega Boulevard, Suite
235, Los Angeles, California 90035. Mr. Berkowitz has been granted options
under the 1998 Plan to purchase up to 120,000 shares of Common Stock, at
an exercise price of $0.28 per share and an additional 100,000 shares of
Common Stock, at an exercise price of $0.20 per share, which are the
subject of this Registration Statement. The options have vested with
respect to 120,000 shares, which expire on September 8, 2003, and 100,000
shares, which expire on January 14, 2004. Mr. Berkowitz is the registered
owner of an additional 52,000 shares of Common Stock.
3. The address for Dr. Lang is 5901 West Olympic Boulevard, Suite 300, Los
Angeles, California 90036. Dr. Gura has been granted options under the
1998 Plan to purchase up to 102,500 shares of Common Stock, which are the
subject of this Registration Statement. The exercise price for 52,500
options is $0.28 per share and for 100,000 options is $0.20 per share. The
options have vested with respect to the 52,500 shares, which expire on
September 8, 2003, and 50,000 shares, which expire on January 14, 2004.
Dr. Lang is the beneficial owner of an additional 1,317,154 shares of
Common Stock (which include 800,000 shares of Common Stock owned by an
affiliate of Dr. Lang). Further, the Company may issue an additional
947,395 shares of Common Stock and warrants to purchase up to an
additional 112,500 shares of Common Stock, subject to certain future
events.
6
<PAGE>
DISCLOSURE OF COMMISSION POSITION OF INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
The Commission has expressed its opinion that indemnification of
directors, officers and controlling persons of the Company against liabilities
arising under the Securities Act, is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by an Indemnitee of the Company in the successful
defense of any such act or proceeding) is asserted by such Indemnitee in
connection with securities which have been registered by the Company, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
LEGAL MATTERS
Certain matters with respect to the validity of the Shares offered hereby will
be passed upon for the Company by Matthias & Berg LLP, 1990 South Bundy Drive,
Suite 790, Los Angeles, California 90035. Matthias & Berg LLP currently owns
options to purchase up to 128,422 shares of Common Stock, exercisable at $1.00
per share, which are not the subject of this Registration Statement.
7
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE
ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO, OR
A SOLICITATION OF ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
NATIONAL QUALITY CARE, INC.
1,042,000 SHARES
OF COMMON STOCK
TABLE OF CONTENTS
PAGE
----
AVAILABLE INFORMATION.......................... 2
THE COMPANY.................................... 3
USE OF PROCEEDS................................ 4
PLAN OF DISTRIBUTION........................... 4
SELLING STOCKHOLDERS........................... 5
DISCLOSURE OF COMMISSION POSITION
OF INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES............................... 7
LEGAL MATTERS.................................. 7
____________
PROSPECTUS
____________
MARCH 19, 1999
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1: Plan Information.
-----------------
The information required by Part I is included in documents to be sent or
given to the participants.
ITEM 2: Registration Information and Employee Plan Annual Information.
--------------------------------------------------------------
Upon written or oral request, National Quality Care, Inc., a Delaware
corporation, (the "Registrant") will provide, without charge, a copy of all
documents incorporated by reference in Item 3 of Part II of this Registration
Statement, which are incorporated by reference in the Section 10(a) Prospectus,
and all other documents required to be delivered to employees pursuant to Rule
428(b) promulgated under the Securities Act of 1933, as amended (the "Securities
Act"). All requests should be made to National Quality Care, Inc., Ron
Berkowitz, Chief Operating Officer, 1835 South La Cienega Boulevard, Suite 235,
Los Angeles, California 90035, tel no. (310) 280-2758.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: Incorporation of Documents by Reference.
----------------------------------------
The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
(a) Annual Report on Form 10-KSB for the year ended December 31, 1997.
(b) Quarterly Reports on Form 10-QSB for the quarterly periods ended March
31, 1998, June 30, 1998 and September 30, 1998.
(c) The description of the Common Stock which is contained in the
registration statements filed under the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof from the
date of filing of such documents.
ITEM 5. Interests of Named Experts and Counsel.
---------------------------------------
Matthias & Berg LLP, counsel to the Registrant, has issued the opinion
filed herewith as Exhibit 5.1 to this Registration Statement. Matthias & Berg
LLP currently owns options to purchase up to 128,422 shares of Common Stock,
exercisable at $1.00 per share, which are not the subject of this Registration
Statement.
II-1
<PAGE>
ITEM 6. Indemnification of Directors and Officers.
------------------------------------------
The Registrant's Certificate of Incorporation generally provide for the
maximum indemnification of a corporation's officers and directors as permitted
by law in the State of Delaware. Delaware law empowers a corporation to
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except in the case of
an action by or in the right of the corporation, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise. Depending on the
character of the proceeding, a corporation may indemnify against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the person indemnified acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceedings, had no
reasonable cause to believe his or her conduct was unlawful.
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other
enterprise, against expenses, including amounts paid in settlement and
attorney's fees actually and reasonably incurred by him or her in connection
with the defense or settlement of the action or suit if he or she acted in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the
corporation unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, he or she must be indemnified by the corporation against expenses,
including attorney's fees, actually and reasonably incurred by him in connection
with the defense. Any indemnification under this section, unless ordered by a
court or advanced pursuant to this section, must be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made: (a) by the stockholders; (b) by the board of
directors by majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding; (c) if a majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding
so orders, by independent legal counsel in a written opinion; or (d) if a quorum
consisting of directors who were not parties to the action, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion.
The certificate of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he or she is not entitled to be indemnified
by the corporation. The provisions of this section do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
The indemnification and advancement of expenses authorized in or ordered
by a court pursuant to this section: (a) does not exclude any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his or her official capacity or an action in another capacity while holding his
or her office, except that indemnification, unless ordered by a court pursuant
to this section or for the advancement of any director or officer if a final
adjudication establishes that his or her acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action; and (b) continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
II-2
<PAGE>
ITEM 8: Exhibits
--------
4.1 1998 Stock Option Plan*
4.2 Form of Non-Qualified Stock Option Agreement for 1998 Stock Option
Plan.*
4.3 Stock Option Agreement between the Registrant and Victor Gura, M.D.,
dated September 9, 1998*
5.1 Opinion of Matthias & Berg LLP*
23.1 Consent of Matthias & Berg LLP (included in Exhibit 5.1)*
23.2 Consent of KPMG LLP
23.3 Consent of Singer Lewak Greenbaum & Goldstein LLP
*Previously filed as part of this Registration Statement
- ----------------------------------
ITEM 9: Undertakings
------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) above do not
apply if the Registration Statement is on From S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is incorporated by reference from periodic reports filed by the
Registrant under the Exchange Act.
(2) That, for determining liability under the Securities Act, to treat
each such post-effective amendment as a new registration statement of the
securities offered, and the offering of such securities at that time to be the
initial bona fide offering.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the end of the
offering.
II-3
<PAGE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, the Registrant has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such director, officers or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Los Angeles, California, on this 19th day of March,
1999.
NATIONAL QUALITY CARE, INC.
By: /s/Victor Gura, M.D.
-------------------------------------
Victor Gura, M.D.
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity in Which Signed Date
--------- ------------------------ ----
<S> <C> <C>
/s/ Victor Gura, M.D. Chief Executive Officer and Director
- ---------------------------- (Principal Executive Officer) March 19, 1999
Victor Gura, M.D.
/s/ Ron Berkowitz Chief Operating Officer and Chief Financial
- ---------------------------- Officer (Principal Financial
Ron Berkowtiz Officer and Principal Accounting Officer) March 19, 1999
/s/Ronald Lang, M.D. Director March 19, 1999
- ----------------------------
*Ronald Lang, M.D.
/s/ Melinda McIntyre-Kolpin Director March 19, 1999
- ----------------------------
*Melinda McIntyre-Kolpin
/s/ Jose Spiwak, M.D. Director March 19, 1999
- ----------------------------
*Jose Spiwak, M.D.
*By Ron Berkowitz, Attorney-In-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
-------------
Document Description of Document
- -------- -----------------------
4.1 1998 Stock Option Plan*
4.2 Form of Non-Qualified Stock Option Agreement for 1998 Stock
Option Plan*
4.3 Stock Option Agreement between the Registrant and Victor Gura,
M.D., dated September 9, 1998*
5.1 Opinion of Matthias & Berg LLP*
23.1 Consent of Matthias & Berg LLP (included in Exhibit 5.1)*
23.2 Consent of KPMG LLP
23.3 Consent of Singer Lewak Greenbaum & Goldstein LLP
- ------------------------------------------
*Previously filed as part of this Registration Statement.
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
National Quality Care, Inc.
We consent to the use of our report dated March 3, 1998, incorporated herein by
reference in the Registration Statement on Form S-8 of National Quality Care,
Inc., relating to the consolidated balance sheets of National Quality Care, Inc.
and subsidiary as of December 31, 1997, and the related consolidated statements
of operations, stockholders' equity and cash flows for the year ended December
31, 1997, and the related schedule, which report appears in the December 31,
1997 annual report on Form 10-KSB of National Quality Care, Inc.
/s/ KPMG LLP
KPMG LLP
Los Angeles, California
March 19, 1999
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 8, 1997 accompanying the consolidated
financial statements of National Quality Care, Inc. appearing in the 1996 Annual
Report of the Company to its shareholders on Form 10-KSB for the year ended
December 31, 1996 which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Form S-8
Registration Statement of the aforementioned report.
/s/ Singer Lewak Greenbaum & Goldstein LLP
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
March 19, 1999
